It [i.e., the Supreme Court] should look to the Structure, be it with a big or small C, written or unwritten (or each), for it’s the structure of a society which represents the basic allocation of competences inside that society. It’s in its structure {that a} society involves phrases with the homely reality that each resolution should lastly be taken on the managerial, prudential, particularistic judgment of any person, and but only a few choices certainly could also be left to the judgment of everyone directly. It’s within the structure {that a} society acknowledges that everybody is in precept able to the Olympian view, and but in reality most individuals will differ after they take it. The Structure, in brief, is a needed, prudential association for the allocation of competences to take a prudential view. And a courtroom, a minimum of anybody else, will fail to respect the prudence of the Structure, if it ignores the constraints by itself scope for making prudential judgments.
Charles Fried, Two Ideas of Pursuits: Some Reflections on the Supreme Courtroom’s Balancing Take a look at, 76 Harv. L. Rev. 755, 772 (1963).
